The Harter Act, so-called, does not relieve the ship owner from liability for damages caused by the unseaworthy condition of his ship at the commencement of her voyage.

Nor is the ship owner exempted from liability under that act, "for damage or loss resulting from faults or errors of navigation, or in the management of said vessel" unless it appears that she was actually seaworthy when she started or that the owner bad exercised due diligence to make her so in all respects.

The mere fact that the owner provides a vessel properly constructed and equipped is not conclusive that the owner has exercised due diligence within the meaning of the act, for the diligence required is diligence on

the part of all the owner's servants in the use of the equipment before the commencement of the voyage and until it has actually commenced, and the law recognizes no distinction founded on the character of the servants employed to accomplish that result.

Whether a ship is reasonably fit to carry her cargo is a question to be determined on all the facts and circumstances, and the difference in the facts of this case from those in The Silvia,171 U. S. 462, was such that the court of appeals was at liberty to reach a different result.

This was an action brought by the Farr & Bailey Manufacturing Company against the International Navigation Company, owner of the steamship Indiana in the District Court of the United States for the Eastern District of Pennsylvania, in admiralty, to recover the sum of $2,084.15, for damages to twenty bales of burlaps which were delivered to the navigation company at Liverpool, England, on board that steamship, in good order and condition, for carriage to the manufacturing company at Philadelphia. Upon the arrival of the steamship at Philadelphia, the burlaps were found to have been damaged by sea water. The case was heard in the district court, and the libel sustained, and the cause referred to a commissioner to determine the extent of the loss. 94 F. 675. The navigation company applied for a reargument, which was had, and thereupon the libel was dismissed. 94 F. 678. From this decree the manufacturing company appealed to the Circuit Court of Appeals for the Third Circuit, and that court, one of its members dissenting, reversed the decree of the district court and held the navigation company liable. 98 F. 636. The case was then brought to this Court on certiorari.

In the first opinion of the district court it was stated that --

"In May, 1895, twenty bales of burlaps in good condition were received by the vessel in Liverpool, consigned to the libellant, in Philadelphia, and a bill of lading was given therefor. The bales were stowed with some other goods in compartment No. 3 of the lower steerage deck, but the compartment was not full, only one tier of cargo, two or three feet high, covering the floor, so that access to the ports was very easy and unobstructed. Four or five days after the vessel left Liverpool, water was discovered in the compartment, and when the hatches were opened a day or two later, it was found that the after

port on the starboard side was admitting water freely as the vessel rolled. Both covers of the port were unfastened and open, but there was no sign of injury to either or to the surroundings of the port. No severe weather had been encountered, and no accident was known to have happened to the vessel. The ports in the compartment were inspected the day before the vessel sailed, and were believed to be closed, but several hours elapsed between the time of inspection and the time of sailing. The libellant's burlaps were injured by the water thus taken into the ship, and the present suit has been brought to determine the respondent's liability."

"We have little difficulty in coming to the conclusion that the vessel was a staunch boat, properly manned, equipped, and supplied, and that she was in all respects fit for the voyage except in the one respect of which the libellant complains -- the condition of the after port on the starboard side in compartment No. 3."

And it was found "as a fact" that the port in question was either not fastened at all or was insecurely fastened when the vessel left Liverpool.

In the second opinion it was said:

"It seems to me that, although the owners of the vessel provided the proper equipment for the porthole under consideration, and although the failure to close it properly was due to negligence in the use of such equipment, nevertheless the result was unseaworthiness, because the vessel set sail with a hole in her side that was not only unknown to her officers, but was believed not to exist. She was therefore not in a condition to afford due protection to the cargo in this particular compartment. If the hole had been caused by collision while she lay at her berth, and she had been sent upon her voyage without repair, it could not be successfully asserted that she was seaworthy, although the proper tools and materials might have been among the ship's stores, and the failure to repair might be properly said to have been due to negligence in failing to use the equipment at hand."

steerage deck in such manner as to admit of free access being had to the port through which the water subsequently entered. This port, and others similarly situated, were inspected on the day before the vessel sailed, and they were believed to be closed and properly fastened; but, after the Indiana had proceeded for four or five days upon her voyage, water made its appearance in the compartment, and a day or two later, investigation disclosed that both the glass cover and the iron dummy of the port in question were open, and that through this opening the water was admitted. There had been no severe weather, no accident was known to have happened, and the port, its covers, fastenings, and surroundings, did not appear to have been in any way broken or impaired."

And found as to the port:

"The impression made upon us by the evidence is that it was probably closed, but, be this as it may, certain it is that it was not securely fastened, and we are of opinion that, by reason of this fact, the vessel was unseaworthy."

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